LAST UPDATED: 16 AUGUST 2023


1.          Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1       Definitions:

               Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

               Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.

               Commencement Date: has the meaning given in clause 2.2.

               Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.

               Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions and the Order.

               Customer: the person or firm who purchases Services from the Supplier.

               Customer Default: has the meaning set out in clause 4.2.

        Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

               Order: the Customer's order for Services.

               Services: the services supplied by the Supplier to the Customer as set out in the Order.

               Supplier: Walking On Earth registered in England and Wales with company number 12433843.

1.2 Interpretation:

(a) A reference to legislation or a legislative provision:

(i)  is a reference to it as amended, extended or re-enacted from time to time; and

(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.

2.   Basis of contract

2.1 The Order constitutes an offer by the Supplier to provide Services to the Customer in accordance with these Conditions.

2.2 The Contract shall come into existence on the date of signature of the Order by both Customer and Supplier (Commencement Date).

2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.4 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.

3.          Supply of Services

3.1       The Supplier shall supply the Services to the Customer in accordance with the Order in all material respects and using all reasonable care and skill.

3.2       The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3       The Supplier reserves the right to amend the Order if necessary to comply with any applicable law or regulatory requirement.

4.          Customer's obligations

4.1       The Customer shall:

(a)    ensure that the terms of and information it provides in the Order are complete and accurate;

(b)    co-operate with the Supplier in all matters relating to the Services;

(c)    provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects, including an up to date list of employees at the beginning of every month of the term of the Contract;

(d)    obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and

(e)    comply with any additional obligations as set out in the Order.

4.2       If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to (i) suspend performance of the Services until the Customer remedies the Customer Default; and (ii) rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and

(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained by the Supplier arising directly or indirectly from the Customer Default.

5.   Charges and payment

5.1 The Charges for the Services shall be calculated on a time and materials basis:

(a) the Charges shall be calculated in accordance with the Supplier's rates as set out in the Order or as provided to the Customer in writing from time to time;

(b) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services.

(c) The Supplier shall invoice the Customer on a monthly basis.

5.2 The Customer shall pay each invoice submitted by the Supplier:

(a) within 30 days of the date of the invoice; and

(b)    in full and in cleared funds to a bank account nominated in writing by the Supplier.

5.3       All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.4       If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum. Interest under this clause 5.4 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

5.5       All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5.6       The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.

6.          Intellectual property rights

6.1       All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

6.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use such Intellectual Property Rights details at clause 6.1 for the purpose of receiving and using the Services in its business.

6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.

6.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the sole purpose of providing the Services to the Customer.

6.5 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence for Supplier to use Customer’s name and logo for marketing purposes only. 

7.   Data protection

The parties shall comply with their data protection obligations as set out in Appendix I.

8.   Limitation of liability

8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.2   Nothing in this clause 8 shall limit the Customer's payment obligations under the Contract.

8.3       Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a)    death or personal injury caused by negligence;

(b)    fraud or fraudulent misrepresentation.

8.4       Subject to clause 8.3 and clause 8.5, the Supplier's total liability to the Customer:

(a)    for loss arising from the Supplier's failure to comply with its data processing obligations under clause 7 shall not exceed the higher of £10,000 or the total value of the Order; and

(b)    for all other loss or damage shall not exceed the total Charges payable under the applicable Order.

8.5       Subject clause 8.2, 8.3, and clause 8.4, this clause 8.5 sets out the types of loss that are wholly excluded:

(a)       loss of profits.

(b)       loss of sales or business.

(c)        loss of agreements or contracts.

(d)       loss of anticipated savings.

(e)        loss of use or corruption of software, data or information.

(f)        loss of or damage to goodwill; and

(g)       indirect or consequential loss.

8.6       The Supplier has given commitments as to compliance of the Services with the Order in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.7 This clause 8 shall survive termination of the Contract.

9.   Termination

9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

9.3       Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:

(a)    the Customer fails to pay any amount due under the Contract on the due date for payment;

(b)    the Customer becomes subject to any of the events listed in clause 9.1(c) or clause 9.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them; and

(c)    the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 9.1(b).

10.    Consequences of termination

10.1 On termination or expiry of the Contract, the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

10.3     Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

11. General

11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

11.2 Assignment and other dealings.

(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

11.3 Confidentiality.

(a) Each party undertakes that it shall not at any time and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).

(b) Each party may disclose the other party's confidential information:

(i)  to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and

(ii)    as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c)    Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

11.4 Entire agreement.

(a)    The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b)    Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

11.8 Notices.

Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or sent by email to the address specified in the Order.

11.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

11.10  Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

11.11  Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract.

APPENDIX 1 – DATA PROTECTION

 

·   “Applicable Data Protection Laws”  means:

a. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.

b. To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.

·   “Customer Personal Data” means: any personal data which the Supplier processes in connection with this agreement, in the capacity of a processor on behalf of the Customer.

1.          For the purposes of this Appendix 1, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.

2.          Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This Appendix 1 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.

3.          The parties have determined that for the purposes of Applicable Data Protection Laws:

3.1       the Supplier shall process the Customer Personal Data as processor on behalf of the Customer where such processing is carried out solely on the documented instructions of the Customer, as set out in the Order.

3.2       Where the Supplier processes personal data in connection with its platform features, analytics, security monitoring, service improvement, or the Ori AI coach, the Supplier shall act as an independent controller and shall determine the purposes and means of such processing in accordance with its Privacy Policy.

3.3       The Customer acknowledges that it does not control, and shall not be deemed the controller of, personal data processed by the Supplier as an independent controller under clause 3.2.

3.4       Should the determination in Appendix 1 change, the parties shall use all reasonable endeavours make any changes that are necessary to this Appendix 1.

4.          The Customer consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by the Supplier in connection with the processing of Customer Personal Data, provided these are in compliance with the then-current version of the Supplier's privacy policy available at https://www.walkingonearth.com/ (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy will take precedence.

5.          Without prejudice to Section 2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier for the duration and purposes of this Contract.

6.          In relation to the Customer Personal Data, the Order sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

7.          Without prejudice to Section 2, the Supplier shall, in relation to Customer Personal data:

7.1       process that Customer Personal Data only on the documented instructions of the Customer where acting as a processor unless the Supplier is required by Applicable Laws to otherwise process that Customer Personal Data (Purpose). This restriction shall not apply where the Supplier acts as an independent controller. Where the Supplier is relying on Applicable Laws as the basis for processing Customer Personal Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer on important grounds of public interest. The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;

7.2       ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

7.3       assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

7.4       notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

7.5       at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. Personal data processed by the Supplier as an independent controller shall be retained and deleted in accordance with the Supplier’s retention schedule set out in its Privacy Policy. For the purposes of this Section 7.5, Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and

7.6       maintain records to demonstrate its compliance with this Appendix 1.

8.          The Customer provides its prior, general authorisation for the Supplier to:

8.1       appoint processors to process the Customer Personal Data, provided that the Supplier:

(a)       shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this Appendix 1;

(b)       shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and

(c)        shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.

8.2       transfer Customer Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

9.          Supplier may, at any time on not less than 30 days' notice, revise this Appendix 1 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement)